Parenting Arrangements

During a separation or divorce, determining parenting arrangements for your children is crucial. Ensuring these decisions are made in the child’s best interests is essential for their emotional and physical wellbeing.

Various avenues are available for establishing these arrangements, including formal Parenting Orders, Consent Orders, or informal Parenting Plans. Each option provides different levels of formality and enforcement.

A parenting agreement involves decisions about a child’s daily life, care arrangements and long-term decisions that will need to be made, including:

• Living arrangements, such as where the child will live and when.

• Time spent with each parent and other family members, including extended family and other significant people.

• If it will be an equal-time (50/50) arrangement (joint custody), or a different split of days, and how much time children will spend with parents on school holidays, birthdays and other special occasions

• Decision-making – which can be equal shared decision-making or granted to one parent

• How decisions about long-term issues will be made

• Emergency planning and emergency contacts

• Education, day care and extra-curricular activities

• Health & medical treatment

• Cultural needs

• Child support

• How parents will communicate with eachother regarding the child’s needs.

These arrangements can be made in many different ways and tailored to each family’s specific needs, with the best interests of the children and their unique needs of paramount consideration.

Types of parenting arrangements include:

• Parenting Plans: Informal, non-binding written agreements between parents outlining care arrangements. They offer flexibility and are suitable when parents can effectively communicate and collaborate.

• Consent Orders: Formalised agreements approved by the court hold the same legal weight as parenting orders but are agreed upon voluntarily by the parents.

• Parenting Orders: Legally binding decisions made by the Family Court of Australia or the Federal Circuit and Family Court when parents cannot agree. These orders ensure clarity and enforceability, especially in cases of conflict.

If parents can reach an agreement, a Parenting Plan or Consent Order may be the best option. These plans offer flexibility without the need for lengthy court proceedings. If both parents are happy with the agreement, final parenting orders can be made without the need for any interim orders. If needs change over time, orders can be varied to accommodate them.

Parenting Plans

• Informal and flexible

• Suitable for cooperative parents

• Covers living arrangements, time spent with each parent, child support, and communication methods

Parenting Orders / Consent Orders:

• Legally enforceable

• Can be used when parents cannot agree or are in conflict

• Can include Interim Orders (temporary arrangements), Final Orders (permanent decisions), Recovery Orders (for non-compliance), and Contravention Applications (for breaches)

When parents can agree, they can apply for a Parenting Consent Order to finalise their matter. If parents cannot agree, they can apply for the Parenting Order to be decided on by the Family Court of Australia or the Federal Circuit and Family Court. A Parenting Order is legally enforceable and provides clarity when parents cannot communicate effectively or if there is a risk of conflict.

Common types of orders include:

• Interim Orders: Temporary arrangements while the court finalises decisions.

• Final Orders: Permanent decisions made by the court after a hearing.

• Recovery Orders: Used when a child is not returned to a parent as per an existing order.

• Contravention Applications: Filed when one parent breaches an order.

Under the Family Law Act 1975, the children’s best interests are the paramount consideration when separating parents make parenting arrangements. This includes:

• The child’s views, mainly as they grow older.

• The development of the child, including their health, safety, and wellbeing.

• The importance of maintaining a meaningful relationship with both parents unless there are risks like family violence or child abuse.

Most people experiencing parenting disputes are encouraged to go through a mediation or Family Dispute Resolution (FDR) process before heading to court. This process, overseen by a Family Dispute Resolution practitioner, helps parents attempt to reach an agreement without the need for court proceedings.

If mediation fails or if one parent refuses to participate, a Section 60I certificate is required to file an application for a Parenting Order.

The court considers the best interests of the child in family law matters, focusing on their safety, emotional needs, and the importance of having meaningful relationships with both parents unless there are risks of family violence or harm.

Sometimes, significant changes in circumstances may require adjustments to existing orders. In these cases, parents can seek new Parenting Orders to reflect these changes, whether due to a parent’s relocation, changes in the child’s needs, or other factors.

If parents can reach an agreement, they can apply for a Consent Order to formalise the new arrangements. If not, a family law court will need to determine whether the change is in the children’s best interests.

Once a Parenting Order is in place, both parents are legally obligated to follow it. If one parent fails to comply without a reasonable excuse, the other parent can file a contravention application. Courts take breaches seriously, particularly where non-compliance impacts the child’s welfare.

The court takes family violence and child abuse seriously when making decisions about parenting arrangements. In cases where there’s a risk of harm, the court may make orders to protect the child, such as:

• Limiting contact with one parent or spending time together in a supervised manner

• Issuing Family Violence Orders to prevent any form of abuse.

Yes, mediation services and Family Dispute Resolution services are available to help parents reach an agreement without needing court intervention. If mediation is unsuccessful, a Section 60I certificate is required to apply for a Parenting Order.

To improve a problematic co-parenting relationship, consider the following steps:

Seek Professional Counseling: Engage a family therapist or mediator to address conflicts and improve communication.

Attend Co-Parenting Courses: Enrol in parenting classes or workshops to enhance co-parenting skills.

Follow Court Recommendations: If an Australian court orders, comply with recommended programs or services to improve co-parenting dynamics.

If sole custody is your only option, you’ll need to take the following legal steps:

1. Seek Legal Advice: Consult a family lawyer to understand your rights and the legal process.
2. Apply for Parenting Orders: File an application for sole custody, known as a parenting order, in the Family Court of Australia or the Federal Circuit and Family Court.
3. Provide Evidence: Demonstrate why sole custody is in the child’s best interests, including concerns about safety, family violence, or the other parent’s inability to provide care.
4. Attend Mediation: Complete Family Dispute Resolution (FDR) unless exempted by the court (e.g., due to family violence).
5. Follow Court Orders: If the court grants sole custody, comply with all legal obligations, including any arrangements for the other parent’s supervised or limited contact with the child.

Legal advice and preparation are essential to ensure your case is presented effectively.

Parents can seek help from Family Relationship Centres, Legal Aid, and family counselling services to navigate parenting matters and the legal process.